D.C. Circuit Gives Narrow Reading to Attorney Immunity

By Samson Habte

Aug. 18 — An inventor who lost a patent case after an adverse ruling on a question of first impression may proceed with malpractice claims against his lawyers, the U.S. Court of Appeals for the District of Columbia Circuit ruled in an Aug. 12 opinion that gave a narrow reading to the “judgmental immunity” doctrine ( Seed Co. v. Westerman, 2016 BL 261489, D.C. Cir., No. 14-7126, 8/12/16 , rev'g 30 Law. Man. Prof. Conduct 521).

The decision highlights the fuzzy contours of the judgmental immunity defense, which has gained recognition across the nation in recent years.

That doctrinal defense—sometimes referred to as the “attorney judgment” rule—insulates lawyers from liability in malpractice cases that are predicated on claims that an attorney made the wrong decision when confronted with an unsettled question of law or a tactical choice between multiple viable strategies.

A trial judge previously held that the doctrine required the dismissal of a lawsuit that accused lawyers at a now-defunct firm of making mistakes that doomed a Japanese inventor's efforts to establish the priority of his patent application for a “corrective tape dispenser.”

The client, who first patented his invention in Japan, lost a patent interference proceeding in the U.S. because his lawyers failed to attach an English translation to the patent application they filed in this country.

That oversight prevented the client from using the date of his Japanese application as the filing date for his U.S. application, and it ultimately prevented him from establishing the priority of his invention.

But the trial court said the mistake didn't give rise to malpractice liability because authorities available when the lawyers filed the application didn't make it clear that an English translation was required.

Biomet requires that lawyers must exercise reasonable care, but does not require them to foretell the future,” the trial court said, citing a 2009 case that recognized the judgmental immunity defense in D.C. See Biomet Inc. v. Finnegan Henderson LLP, 967 A.2d 662, 25 Law. Man. Prof. Conduct 187 (D.C. 2009).

The appellate court reversed. Through Judge Srikanth Srinivasan, the panel said a jury must decide whether the defendants established the two elements required to invoke judgmental immunity.

“To affirm, we would need to find no genuine dispute of material fact about either of the elements of the doctrine: ‘that (1) the alleged error is one of professional judgment, and (2) the attorney exercised reasonable care in making his or her judgment,'” Srinivasan wrote. “Because we find a genuine issue as to both, we reverse the grant of summary judgment.”

Risky Business

The appeals court said the ambiguity that previously existed regarding whether a foreign translation was required “does not necessarily support the defendants' claim that they exercised judgment in failing to file a translation.”

“Typically, the judgmental-immunity doctrine applies when a lawyer makes a strategic choice between two options, each of which has costs and benefits,” Srinivasan wrote. “For example, in Biomet, the defendant lawyer had to decide which arguments to include in the limited space in his appellate brief.”

“But an attorney does not exercise professional judgment when she interprets unsettled law in a way that ‘manifestly risk[s] the loss of [a] client's claims' for no plausible advantage,” Srinivasan added.

Accordingly, he said, “A factfinder could infer that a reasonable lawyer would err on the side of caution by filing the translation if the requirements were ambiguous and there were no reason not to do so.”

Reasonable Care?

The court said it also wasn't clear that the defendants satisfied the “reasonable care” element of the judgmental immunity defense.

“To fall under the judgmental-immunity doctrine, the lawyer must ‘undertak[e] reasonable research of the relevant legal princip[les] and facts of the given case,'” Srinivasan wrote, citing Biomet.

But the defendants “introduced no evidence of their deliberative process in reaching the decision not to file the translation,” Srinivasan said. “Although the absence of evidence is not necessarily dispositive, it at least permits a factfinder to draw an inference that [the] defendants did not exercise reasonable care,” he wrote.

Ex-Partners Off Hook

Plaintiff Shigeru Tamai and his company, Seed Co. Ltd., brought malpractice claims against two groups of lawyers who worked at the same firm when the representation began but split ways when the underlying patent case was on appeal.

Both groups of defendants—the lawyers who continued representing Tamai after the breakup and their former colleagues who stopped representing him at that point—raised statute of limitations defenses.

The plaintiffs countered that the continuous representation rule tolled the malpractice statute of limitations while the patent dispute was on appeal.

The court agreed, to an extent. It said the continuous representation rule tolled the limitations period for claims against the lawyers who took the patent case with them after their firm dissolved, but did not toll other claims against the other defendants.

“We join other courts in holding that the continuous-representation rule does not toll the statute of limitations on a claim against a firm after the attorney providing the representation leaves the firm and takes the client's business with her,” Srinivasan wrote, citing Dunn v. Rockwell, 689 S.E.2d 255, 25 Law. Man. Prof. Conduct 681 (W. Va. 2009) and Beal Bank, SSB v. Arter & Hadden LLP, 167 P.3d 666, 23 Law. Man. Prof. Conduct 491 (Cal. 2007).

To contact the reporter on this story: Samson Habte in Washington at shabte@bna.com

To contact the editor responsible for this story: Ethan Bowers at sbowers@bna.com

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